Pitsonbarger v. Gramley

• Decision Date: 09 April 1998
• Docket Number: No. 95-3912,95-3912
• Citation: Pitsonbarger v. Gramley, 141 F.3d 728 (7th Cir. 1998)
• Parties: Jimmy Ray PITSONBARGER, Petitioner-Appellant, v. Richard GRAMLEY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 728

141 F.3d 728

Jimmy Ray PITSONBARGER, Petitioner-Appellant, v. Richard GRAMLEY, Respondent-Appellee.

No. 95-3912.

United States Court of Appeals Seventh Circuit.

Submitted Dec. 1, 1997.

Decided April 9, 1998.

Stephen E. Eberhardt (submitted), Chicago, IL, Marshall J. Hartman, Chicago, IL, for Petitioner-Appellant.

Martha E. Gillis, Steven R. Splitt, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appellee.

Before CUMMINGS, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

When we last considered Jimmy Ray Pitsonbarger's petition for a writ of habeas corpus, we evaluated it in light of this court's decision in Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996)(en banc), in which we had concluded that the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, applied to petitions that were pending on the effective date of that law. The Supreme Court, however, did not agree with our analysis of AEDPA's retroactivity; it held instead that the amendments that AEDPA made to 28 U.S.C. § 2254 do not apply to applications in noncapital cases that were already pending when that Act was passed. See Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2061, 138 L.Ed.2d 481 (1997). By its order of October 6, 1997 the Supreme Court vacated this court's earlier decision in Pitsonbarger v. Gramley, 103 F.3d 1293 (7th Cir. 1996), reh'g denied, 103 F.3d at 1306-07 (7th Cir. 1997), and remanded the case to us for reconsideration in light of its Lindh decision. Pitsonbarger v. Gramley, --- U.S. ----, 118 S.Ct. 37, 139 L.Ed.2d 6 (1997). Seeing no reason in this context to distinguish between capital and noncapital cases in a state which has not implemented the standards specified in 28 U.S.C. § 2261, cf. Lindh, at ---- - ----, 117 S.Ct. at 2065-67, we have re-evaluated each of Pitsonbarger's claims in light of the law governing habeas petitions prior to the AEDPA. Once again, we conclude that the district court correctly denied his petition.

I

We assume familiarity with the factual and procedural background of this case as it was described in our earlier opinion. In brief, Pitsonbarger was charged with and tried for murder in two states, Missouri and Illinois, and he was charged with attempted murder and other crimes of violence in Nevada. The present case involves his Illinois prosecution for the murders of Claude and Alta Brown. All three states returned convictions, but only Illinois imposed the death penalty. Under an agreement among the governors of the three states, Pitsonbarger has remained in Illinois, so that the State may carry out the death sentence. He filed various appeals and petitions for post-conviction relief in the Illinois courts, leading up to the present petition under 28 U.S.C. § 2254 for federal habeas relief, which he filed on March 16, 1995. Perhaps the most important claim Pistonbarger has raised is that his trial counsel was constitutionally ineffective for failing to inform the court that his client was taking the psychotropic drug Librium at the time of trial and sentencing. This failure in turn meant that the state court never held a hearing on his fitness to stand trial. In his petition for habeas relief, and on appeal to this court, Pitsonbarger argued that if the state court had held the hearing, and if the court had made a finding of unfitness to stand trial, and if he had later been found fit for trial with some assistance, Illinois law would have precluded imposition of the death penalty. See 725 ILCS 5/104-10, 5/104-22, 5/104-26(b).

Mindful of the weighty responsibility we bear in reviewing a capital case, we set forth here all eleven of the arguments Pitsonbarger raised in his brief on appeal to this court, so that our reasoning can be clear to all. He presented the following points:

1. It was a denial of due process and equal protection and rights guaranteed by the sixth, eighth, and fourteenth amendments to the U.S. Constitution for the State of Illinois to refuse to return him to the State of Nevada pursuant to the Interstate Agreement on Detainers.

2. His rights under several provisions of the Constitution were violated when he was sentenced by a jury that included members who engaged in private deliberations regarding his case.

3. His constitutional rights were violated when the court improperly excused three prospective jurors for cause and refused to remove a fourth.

4. His constitutional rights were violated when the State used its peremptory challenges to exclude potential jurors who expressed only general objections to the death penalty.

5. His rights under the sixth, eighth, and fourteenth amendments were violated by the State's use of irrelevant and inflammatory evidence at the first stage of the capital sentencing hearing (the eligibility stage), and by the State's comments and introduction of certain evidence at the second stage of the hearing (the penalty stage).

6. He was denied his right to effective assistance of trial counsel, appellate counsel, and postconviction counsel, in violation of the fifth, sixth, eighth, and fourteenth amendments.

7. It violated his rights under the fifth, sixth, eighth, and fourteenth amendments to be represented by court appointed counsel who himself was appointed to serve at the pleasure of the state circuit court's judges.

8. The Illinois Death Penalty statute is unconstitutional because the death penalty may not be imposed on a similarly situated appellant who requires "special assistance" at trial.

9. The jury instructions were constitutionally inadequate because they did not sufficiently inform the jury of its obligation to consider and give effect to all of his mitigating evidence, and because there was no instruction about nonstatutory mitigating factors.

10. The jury instructions and the operation of the Illinois Death Penalty statute are unconstitutional in a variety of ways.

11. The death penalty was excessive in light of the significant mitigating factors he presented.

This is, needless to say, a great number of arguments, evidently presented in the hopes that at least one would attract this court's attention. We understand that counsel in a death penalty case might be inclined to bend over backwards to avoid waiving any potential argument. Nevertheless, selectivity does not cease to be a virtue in such cases; to the contrary, concentration on the best arguments normally permits better development than is possible with a scattershot approach. In any event, here counsel focused our attention at oral argument on the effectiveness of counsel claim as his strongest point. We accordingly give that our greatest attention in this opinion, although we address all of the other arguments as well.

II

1. Interstate Agreement on Detainers

This argument was properly presented to both the state courts and the court below. Pitsonbarger argued that the Interstate Agreement on Detainers Act (IAD), 730 ILCS 5/3-8-9, required Illinois to return him to Nevada after his Illinois trial, notwithstanding the agreement of the State of Nevada (through its governor) to allow Illinois to keep him. In our earlier opinion, we rejected this claim, pointing out that the agreement of the governors was enforceable and that in any event Pitsonbarger had no legally protectable rights under the IAD in the place where he would serve his sentence. See 103 F.3d at 1300-03. This is a legal argument which we would have reviewed under the AEDPA to see if the state court reached "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1) (West Supp.1997). Our analysis, however, in no way depended upon any deference to the state court's views on the IAD. We have reviewed our earlier reasoning under the de novo standard of review that prevailed prior to the AEDPA, Lieberman v. Washington, 128 F.3d 1085, 1091 (7th Cir.1997), and we conclude that we correctly rejected this claim.

2. Private Jury Deliberations

As with the IAD claim, we analyzed this issue in our prior opinion. See 103 F.3d at 1303. The district court found that Pitsonbarger procedurally defaulted this claim by failing to present it to the state courts. This requirement existed before the AEDPA, just as it does under the amended statute. Applying the pre-amendment version of the law, we again conclude that Pitsonbarger procedurally defaulted this argument and that the district court correctly found that he could not raise it.

3. Dismissals for Cause

The trial court dismissed three prospective jurors, Terry Harter, Bernadine Anderson, and Harriet Ottenweller, for cause, because each of them indicated during voir dire that he or she had an aversion to imposing the death penalty. As we noted in our earlier opinion, "a juror in a capital case may be excused for cause if his views about the death penalty would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " 103 F.3d at 1303, quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). We further commented that the trial court's determination of bias is a factual matter entitled to a presumption of correctness under amended § 2254(e)(1). Although we applied the AEDPA's more stringent presumption of correctness for state court fact findings, under which a petitioner may prevail only upon a showing of clear and convincing evidence, the pre-amendment version of § 2254 also treated state court fact findings as presumptively correct. See 28 U.S.C. § 2254(d) (1994). None of the eight exceptions that would allow that presumption to be overcome exists in this case. See § 2254(d)(1)-(8) (1994). We therefore find that under the pre-AEDPA statute, Pitsonbarger's challenges to the trial court's dismissal of these three jurors...